We use cookies to give you the best possible experience on our website. By continuing to use this site you consent to the use of cookies on your device as described in our cookie policy unless you have disabled them.

Criminal Law

Criminal Law Questions? Ask a Criminal Lawyer.

Connect one-on-one with {0} who will answer your question

By continuing to use this site you consent to the use of cookies on your device as described in our cookie policy unless you have disabled them.

I am specifically looking for an appellate case where the ...

I am specifically looking for an appellate case where the defendant is found not guilty; the defendant wins the case for the following reason:

THE PARTIES' CONTENTIONS
1. Appellant's Contentions

Appellant contends he was not subject to arrest for DUI because the arresting officer did not see him driving his vehicle.

In addition I am looking to prove the following points:

• An individual has to be witnessed driving/behind the wheel of a motorized vehicle in order to be charged with a DUI
• Even if that same individual admits to driving/owning the said vehicle this is not enough to be charged with a DUI
• There has to be someone who actually puts /an eye witness to the fact that the individual being charged with a DUI was the same person driving the vehicle

I know that there are appellate cases out there that prove the above statements. I am on a time constraint and would greatly appreciate any assistance in this matter as soon as possible.

The DUI laws, including case interpretations, of most states do not require that an officer actually see someone driving to make a valid DUI arrest.

A person found in the driver's seat under circumstances which indicate that he was driving (such as passed out with the motor running) is sufficient to support an arrest for DUI. Or found in the driver's seat of a vehicle which is not running but has been involved in an accident and no one else is present. Each situation would have to be evaluated on its specific facts to determine the validity of the arrest.

Once any such circumstance is proved, the driver's statements are admissible. The driver's statements alone, with no supporting evidence at all, are not admissible (based on the corpus delicti rule).

It cannot be said that there must, in every case, be an "actual" eyewitness to driving in order to prove a DUI. There must, however, be sufficient circumstantial evidence to show that the person charged is the person who was driving.

If you can provide information about the specifics of the arrest involved, I can provide a more particular analysis and perhaps direct you to cases on point. BTW, are you particularly concerned about Texas law?

Jim Reilly

Ask Your Own Criminal Law Question

Customer reply replied 10 years ago

Please let me be more specific, my brother-in-law fell asleep at the wheel of his truck earlier in the year, he was in a construction zone, in Ellis County Texas, he hit a concrete barrier, he pulled off at the first exit, approximately 4-miles from the initial point of impact, parked his truck, the truck was totaled at this point, he turned the truck off, went into a gas station, was there approximately 22-minutes per the initial police report, called his insurance company, the local police arrived at the gas station during this time, once he saw the police he informed the insurance co., and left the gas station to meet the police.

He informed the police that he had fallen asleep at the wheel and had wrecked his truck. The local police said nothing to him and shortly after a state trooper showed up. My brother-in-law informed the state trooper of the same. The state trooper then ran my brother-in-laws license, it came back that he had been charged with a previous DWI in 1993. My brother-in-law was found not guilty for that offense in 1993 however, it was obviously still on his record, and prior to hearing the results of the case the trooper immediately began taking him through a sobriety test. My brother-in-law had just totaled a 2006 Nissan Titan and it was obvious through the video that he could not maintain his balance. Consequently he was booked and charged for DUI.

He won the initial trial for his license suspension. The judge found that the state trooper did not give him the ample opportunity to give either blood or breath to prove his innocence. In short, his current lawyer won this on a technicality. My issue with all of this is that the DA does not have an eye witness that puts my brother-in-law behind the wheel of the truck. Therefore, I would like to find an appellate case with similar circumstances that would clear my brother-in-law due to the obvious definition of what a charge of a DUI is. The defendant was found not guilty and won the case.

The specific details do make it easier to give you an appropriate response, Robert, thank you.

When you say he won his "initial trial" for the license suspension, do you mean a pre-trial hearing? Or an administrative hearing at the DMV? Generally, there would not be separate trials for any license suspension and the DUI itself. Was his license suspended for refusing to take a chemical test?

If not, was he given a chemical test at the police station? Blood, breath or urine? If so, what were the results of that test?

As for the issue of driving, your brother-in-law's admission that he was driving the truck is almost certainly admissible. The wrecked truck is evidence that someone was driving and provides sufficient corpus delicti to make admissible any statement by the driver that he was in fact driving.

Therefore, it is my opinion that even if there was an appellate case on the issue of the officer observing the defendant driving, it would not help in this situation. Also, exactly what you are looking for (a case in which "the defendant was found not guilty and won the case") can never be found in an appellate decision because the prosecution cannot appeal from an acquittal at the trial level.

The closest you could come is an appellate case in which the defendant was convicted and the conviction overturned on appeal. I cannot find a Texas case in which this happened on facts similar to those in your brother's case.

His best defense -- particularly if there was never a chemical test -- appears to be that the prosecution will have a difficult time proving that he was under the influence of alcohol. If the field sobriety test is the only evidence of impairment, the fact that he was involved in a substantial accident will negate impairment due to alcohol.

Does he have an attorney? What is the current status of the case and when is it set for trial?

Jim Reilly

Ask Your Own Criminal Law Question

Customer reply replied 10 years ago

It was the administrative hearing at the DMV. I’m going to attempt to send you a copy of that. The way it’s written in the police report, the driver’s license can be suspended for refusing to give either a blood or breathe test however, he did take a breathalyzer test and this is on the video. The breathe test was administered by the state trooper outside the gas station. Per the police report the breath test resulted in a detectable.

On 02/09/08 at about 7:38 pm Trooper Prudom and I were notified of a crash on south bound IH-35 near the 390 mile post. Trooper Prudom arrived an informed Ellis County that the other vehicle involved in the crash had left the scene and had not stopped. I drove down to Italy; Texas to try and locate the vehicle because Trooper Prudom advised the vehicle that had fled the scene would have major damage to the front right side of the truck. A Italy officer located the vehicle at the Exxon gas station parking lot in Italy. I arrived right after the Italy officer and the Milford PD Officer. I made contact with the driver. The driver stated he had fallen asleep and hit both sides of the median. I asked the driver if he was ok and he stated yes that he had just fallen asleep. I asked the driver if he had anything to drink and he stated no. He stated that he had just fallen asleep. He stated that he had not taken any medications. I asked the driver if he knew he hit another vehicle and he stated no. I asked him why he did not stop and he stated he just needed to get off the road and call his insurance company. I observed the driver to have watery blood shot eyes. The driver looked confused. I had the driver perform field sobriety test. The test indicated that the driver was intoxicated. I asked the driver why he was lying to me. He stated he had nothing to drink. He took a deep breathy and exhaled. I then detected an odor of an alcoholic beverage coming from his breath. I continued the remaining field sobriety tests and the results indicated t the driver was intoxicated. I had the driver into a PBT and t showed a detectable amount of alcohol in his system. The driver stated several times that his back was hurting. I informed him that he did not say he was hurt earlier when I asked him. He was just saying it now when he had to do the tests. I placed the driver under arrest for driving while intoxicated. I handcuffed and placed him in the patrol car. I began to detect a strong odor of an alcoholic beverage coming from his breath. The Italy officer spoke to the attendants inside the Exxon gas station and they stated he came in and went directly over to the coffee and got the biggest plastic cup and filled it with coffee. I also spoke to the attendants and they stated the same thing to me. The driver was attempting to cover the odor of alcohol. This was the reason I did not detect it in the beginning until the coffee wore off. I filled out the vehicle information for the crash report and inventoried the vehicle and released it to helms garage out of Italy, Texas. I read the statutory warning to the driver and he refused to give a specimen. I read the driver his Miranda warning and he refused to answer questions. I transported the driver to the Ellis County jail and booked him in for DWI and FSRA. The driver did not make any attempt to Contac the police after the crash. He fled the scene and drove down to the gas station and got a cup of coffee to hide the odor of alcohol. He called his insurance company instead of the police he had about 20-minutes before we arrive to call the police and he did not.

My brother-in-law is not being charged with failure to render aid; just the DWI. He has an attorney, his name isXXXXX he went to this particular attorney under the advisement of a friend, knew nothing about this particular attorney prior, this happened on 02/09/08, and is due to be set for trial on September 18th. The DA made him an offer of accepting a DWI on his record, accepting a 90-day suspension of his license, and in turn he would waive the 2-year probation period. He didn’t take that offer.

The PBT (preliminary breath test) does not count as a chemical test and the law still requires submitting to a regular test (bloor, breath or urine). Given the description in the police report, I am actually surprised that he won the DMV suspension hearing, unless the evidence at the hearing was in some significant respect different than what is in the report.

I am also surprised that your brother-in-law is not charged with leaving the scene of an accident in addition to the DUI charge. Most DA's offices would have charged that even though he said he did not realize another vehicle was involved.

On the facts described in the police report, his statement that he was driving is undoubtedly admissible and will be sufficient, if believed by the jury, to sustain a conviction. The other driver can also testify to the events, which would also make his admissions admissible.

Furthermore, his conduct after the collision, if accurately described, also evidences a consciousness of guilt and the jury will probably be instructed that they may consider this in determining their verdict.

Refusal cases (that is, those in which the defendant did not take a chemical test) are the most difficult for the prosecution to prove, because they still have to prove beyond a reasonable doubt that the driver was under the influence at the time of the driving. This is his best (only, really) chance of avoiding a conviction.

Realistically, however, if the trial testimony presents the same evidence as stated in the police report, an acquittal is going to be very difficult to obtain.

Jim Reilly

Ask Your Own Criminal Law Question

Customer reply replied 10 years ago

This is brief synopsis of what transpired during the administrative hearing:

Administrative Decision:
On June 17, 2008, the Defendant appeared personally of through counsel and announced ready. The Department appeared through its attorney and announced ready. Having heard and considered the evidence, the Administrative Law Judge finds the State Office of Administrative Hearings has jurisdiction over this cause.

Findings of Fact:
Having considered the evidence, the Judge finds that the following issues/elements were not proven by a preponderance of the evidence; that the Defendant was offered an opportunity to provide a specimen of breath or blood under the provisions of Tex.Transp.Code Ann. & 724.
The Peace Officer’s Sworn Report (DPS Exhibit One) was admitted at the hearing. This exhibit establishes that a warning was provided to the Defendant and, the Defendant refused to provide a specimen. However, since a copy of the DIC 24 Statutory Warning was not offered at the hearing, the Department failed to provide any evidence that the warning provided to the Defendant was proper under Tex. Transp. Code Ann. & 724. The ALJ is unable to find that the Defendant was properly offered an opportunity to provide specimen of breath or blood under the provisions of Tex.Transp. Code Ann. & 724.

Conclusions of Law:
Based upon the foregoing the Judge concludes that the evidence presented in this cause was insufficient to establish all the issues/elements set out in Tex.Ann.&724.042 by a preponderance of the evidence.
In accordance with the above Findings and Conclusion, the Judge hereby enters the following Order:

Order:
The Department’s petition is denied and the Department is not authorized to suspend the Defendant’s license.

Signed the 17th day of June, 2008Does this information affect the outcome at all? The other party was not hurt, it was 8pm, the other party is elderly, and lives in MO. They will not be there to testify; no interest.

The fact that the other person was not hurt probably played a part in the decision not to file other charges, but will have no effect on the DUI itself.

That the other driver will not be present to testify will eliminate any description of the accident itself, which could be somewhat helpful if only because the jury won't hear the details of any bad driving involved.

The time of the incident is not a significant factor, other than it is rather early in the evening for a DUI.

If your brother-in-law was with other people before he started driving and they can testify that he was not drinking or at least not under the influence, that would be helpful.

I was parked on the side of the road and an officer saw and summoned me for smoking marijuana I was not driving but behind the wheel and he saw me smoking This was my 1st offence and I sell real estat… read more

Hypothetical, what if you have a charge of DUI OLYMPIA MUNICIPAL COURT - Olympia, WA? IF it reads below .08 at the station, and they do not accept field tests for alcohol, as admissible evidence - wou… read more

SCENARIO: I am driving with my spouse riding as the sole passenger. I get pulled over and charged with a DWI. As my spouse, in the state of North Carolina, can my spouse be charged with aiding and abe… read more

I was charged with a dui. I was sitting in drivers seat in my van waiting for my wife to come get me because vehicle was broke down. Sitting for about an hour. Vehicle was not running, keys were not i… read more

Hi Robert, I would like to know what might be the charge if the person driving the car was not able to see the police car as he was driving at a very hight speed (130 mph). The moment he saw the cops … read more

I was arrested for my first offense DUI, with a BAC of 0.203. And am afraid I will be charged with aggravated DUI in the state of Montana. I had made it safely home, in my respective parking spot (apa… read more

In the state of Pennsylvania does the state police need probable cause to pull you over? I passed a state cop parked along the road. I think was watching for speeders. About 2-3 miles down the road. I… read more

I am 18 years old, a male living in New York State. Last July I was arrested for DUI in Pennsylvania with a BAC of .04. It was late at night and foggy, I had consumed 2 drinks about an hour and a half… read more

My husband was charged with OUI. A disgruntled neighbor called 911, saying he saw him in our street driving drunk. 2 hours later police arrived. Doug was in bed, drunk. He drank that evening but after… read more

Help!! If one is NOT driving and is charged with a DUI, receives summons etc. however there are numerous errors on the summons, i.e., vehicle color and model , are those enough to have the charge thro… read more

My daughter and her friend got in a wreck last night. They were both drunk, her friend admitted to driving (it was her car) they had her in cuffs and the cop car and she even said she was driving. The… read more

i was arrested for dui and dwls while sitting in my vehicle. i was not moving at the time of the arrest.what are the laws that pertain to this charge and can a person be charged with these crimes if n… read more

My father was given a DUI a few weeks ago. He was followed by a cab driver and was arrested at his door step, they arrived as he was walking into his apartment. The cab driver told the police he was d… read more

DOES A STATE TROOPER HAVE TO SEE YOU BEHIND THE WHEEL OF A CAR WITH IT RUNNING? WHAT IF YOU ARE NOT EVEN IN THE VEHICLE, NOT RUNNING, NO KEYS, CAN THEY STILL ARREST YOU, EVEN IF YOU WERE DRUNK AND SAY… read more

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.

JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends.

NormaPensacola, FL

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

< Previous | Next >

Meet the Experts:

Ely

Counselor at Law

3,249 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

P. Simmons

Lawyer

2,269 satisfied customers

16 yrs. of experience including criminal law.

RobertJDFL

Lawyer

2,139 satisfied customers

Experienced in multiple areas of the law.

Nate

Lawyer

1,925 satisfied customers

Over 10 years of criminal defense practice.

LawTalk

Lawyer

1,815 satisfied customers

30 years legal experience

Marsha411JD

Lawyer

1,654 satisfied customers

Licensed attorney with 29 yrs. exp. in criminal law

Barrister

Criminal Defense Law

1,362 satisfied customers

17 years practicing criminal defense.

< Previous | Next >

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).